Access to Information
Cases

In this section are
summaries of, and links to, national and regional
court judgments on freedom of information. We aim to
include references to a selection of important
decisions of the regional courts and the UN Human
Rights Committee, and to national court judgments
that support access to information. These cases
illustrate how the courts all over the world
interpret and view the right of access to
information.

While we aim to
include as many decisions as possible, we do not
claim to have the latest decisions from each court.
Rather this selection hopes to provide organizations
and individuals intending to litigate with a set of
good arguments to make their case. The cases in this
section are easily searchable by country and
keywords. Where we have access to briefs of the
parties or amici, we have included links to these as
well.

We will continue to
add more case summaries, and we also aim to add
summaries of and links to the most interesting and
relevant decisions of information commissioners. As
always your contributions to this process will be
greatly appreciated. Please send us any corrections
and missing links, as well as additional cases, case
summaries and briefs to make this page even more
interesting and useful.

Decision:
The application was rejected as the applicant didn't
exhaust domestic remedies

Key words: parliamentary
elections, access to information

Summary:

Facts

The applicant is a
non-governmental organization which has its
registered office in Yerevan (Armenia). The
applicant organization acted as an election observer
during the parliamentary election held in Armenia on
25 May 2003 and subsequently applied to the Central
Election Committee (the CEC) via registered mail
requesting copies of documents on the parliamentary
elections. The District Court dismissed the
applicant organization’s request. Court of Cassation
reiterated the findings of the Court of Appeal that
the organization had failed to prove that it had
sent request to the CEC. Relying on Article 10
(freedom of expression) applicant complained that
its right to receive and impart information had been
violated by the actions of the CEC.

Decision

The European Court
held that as the applicant organization had not
provided adequate evidence about the CEC’s alleged
failure to respond to its request for information
its complaint was not examined by the domestic
courts on the merits. The applicant organization had
therefore failed to exhaust domestic remedies as
required by Article 35 § 4 of the Convention and its
application had to be rejected.

Note:
Justice Initiative made a submission to the Court
stating that the right of access to information was
well-established in both European and international
law and practice and access to government
information was an integral element of freedom of
expression and an actual prerequisite for the
meaningful exercise of other political rights in a
modern democracy.

Decision:
The Court ruled that access to documents for
historical research is an important element of the
right to freedom of expression

Key words: access
to information for historical research, state
secrets

Summary:

Facts

The applicant, a
professor of history at the Central European
University (CEU), for the purpose of historical
research requested the Ministry of Interior to grant
him access to certain documents dating from the
1960s. The request was denied based on the argument
that the documents had been re-classified as State
secrets until 2048. Although several Hungarian
courts ordered the Ministry to give access to the
documents, the Ministry refused to disclose the
documents for five years.

Decision

The Court held
unanimously that there had been a violation of
Article 6 § 1 (right to a fair hearing) of the
Convention, because of the excessive length of
proceedings Mr. Kenedi was required to pursue in
order to gain access to the documents he sought. It
also ruled by unanimous vote, that there had been a
violation of Article 10 (freedom of expression). The
Court stated that access to the documents for
historical research is an important element of the
right to freedom of expression.

Relevant law:
European Convention on Human Rights and
Fundamental Freedoms

Decision: The
Court noted that therefusal to
grant access to administrative documents is a
violation of the applicant’s right to receive
information, though at the end it ruled that in the
present case there was not public interest in the
disclosure of technical information about the
nuclear power station.

Key words: access
to documents and plans of nuclear power station

Summary:

Facts

The applicant,an environmental NGO, was refused access to
documents and plans regarding a nuclear power
station in Temelin, Czech Republic.

Decision

The Court emphasized
that the right to freedom of information is to
guarantees that every person will be able to receive
information which others would like to have or can
agree to provide. The Court also held that Article
10 does not guarantee a general right to have access
to administrative documents. However, it recognized
that the refusal to grant access to administrative
documents, including those related to a nuclear
power station is a violation of the applicant’s
right to receive information. At the end, the Court
found that the technical information about the
nuclear power station was not of a public interest
and it also concluded that the .refusal to disclose
information was in the interest of protecting the
rights of others, national security and public
health. Because of these grounds, the Court ruled
that there was no breach of Article 10 paragraph 2
of the Convention and declared the application
inadmissible.

Decision:
The Court ruled that it would be fatal for freedom
of expression if public figures could prevent public
debate by referring to their personality rights.

Keywords: access
to information as a fundamental right, personal data
of public official

Summary:

Facts

A Hungarian Member of
Parliament filed a complaint with the Constitutional
Court about Hungary's drug laws. The Hungarian Civil
Liberties Union (HCLU) applied to the Court to
receive a copy of the complaint, but were refused
based on the ground that petition constituted
"personal data" that could only be disclosed with
its authors' permission.

Decision

The European Court of
Human Rights (ECHR) held that the refusal to grant
information interfered with the right of an NGO to
access information that was needed for them to play
their role as a public watchdog.

The Court recognized
for the first time that Article 10 of the Convention
guarantees the "freedom to receive information" held
by public authorities. The Court found that when the
state has information of public interest in its
possession, and is requested to disclose such
information to a "watchdog" group - whether the
press or NGOs that serve a watchdog role - it is
obliged "not to impede the flow of information". The
Court stated that it would be fatal for freedom of
expression if public figures could prevent public
debate by referring to their personality rights.

Note: The
Justice Initiative led an effort by a number of NGOs
and media companies, including the Financial
Times, to intervene as third parties in the
current case.

European
Court of Justice (Grand Chamber)

Relevant Law:
Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May
2001 regarding public access to European Parliament,
Council and Commission documents

Decision: The
Court ruledthat the Council
infringed the Article 4(3) of Regulation No
1049/2001 by denying the disclosure of information
relating to the identity of delegations of Member
States who had made proposals, on the ground that
this would seriously undermine its decision-making
process. Subsequently, the Court annulled the
contested decision of the Council.

Key words: decision-making
process, access to the identity of delegations
making proposals for amending Regulation of the
European Parliament and of the Council.

Summary:

Facts

On3
December 2008, the applicant association – Access
Info Europe – applied to the Council under
Regulation No 1049/2001 for access to a document
containing proposals submitted by the Member States
concerning the amendments to Regulation (EC) No
1049/2001 of the European Parliament and of the
Council regarding public access to European
Parliament, Council and Commission documents.

Access Info Europe
was granted partial access to the requested
document. The Council provided the applicant with
the proposals for amendments, but refused to
identify delegations of Member States who put
forward these proposals. For the justification of
the refusal the Council stated that the disclosure
would hinder the decision-making process and that
there was no public interest in the disclosure based
on Article 4(3) of the Regulation (para. 7).

The Council also
argued that the discussion of the proposals was very
sensitive and attracted serious public attention. It
declared that some of the positions of Member States
were met with public criticism which according to
the Council would adversely influence the ability of
the Member States delegations to express and defend
their positions. Besides that, as the Council stated
the delegations would refrain from submitting their
views in writing and all these would hinder the
Council to come to agreement regarding the revision
of the Regulation (para. 44, 45).

Decision

As the Court noted
the purpose of the Regulation No 1049/2001 was to
ensure for the public the widest right to access and
the exceptions to that right established by Article
4 of the Regulation should be interpreted strictly
(para. 55).

The Court stated that
“if citizens are to be able to exercise their
democratic rights, they must be in a position to
follow in detail the decision-making process within
the institutions taking part in the legislative
procedures and to have access to all relevant
information” (para. 69). The Court held that
identification of delegations should not prevent
them from submitting the new proposals and that
proposal is supposed to be discussed and changed and
that the public is capable of understanding that the
delegations might amend their initial positions
during the discussion process (para. 69).

The Court stated that
it is characteristic for democratic debate that any
proposal for amendment of the draft regulation can
be subjected to positive and negative comments by
the public (para. 78).

According to the
Court the risk that delegations would refrain from
submitting written proposals is not such as to
undermine the decision-making process and to justify
the refusal of access to the requested document
(para. 81). Overall, the Court considered that all
the arguments of the Council were abstract and not
substantiated and according to it there was not
demonstrated direct causal link between the
disclosure to the public of the name of the
delegations which made the proposals and the serious
undermining of the decision-making process of the
Council (para. 83).

Relevant law:
Regulation (EC) No 1049/2001 of the
European Parliament and of the Council of 30 May
2001 regarding public access to European Parliament,
Council and Commission documents

Decision: The
Court annulled the decision of the European
Parliament of 11 August 2008 as the denial of access
to Report No 06/02 of the Internal Audit Service of
the Parliament of 9 January 2008 entitled ‘Audit of
the Parliamentary Assistance Allowance’ was
unfounded.

Key words: access
to the audit report of European Parliament

Summary:

Facts

On 11 June 2008, an
Irish lawyer, Mr. Ciarán Toland, applied to the
European Parliament for access to the 2006 Annual
Report of its Internal Audit Service, including the
16 audit reports referred to in paragraph 24 of the
European Parliament Resolution of 22 April 2008. The
requested report (known as the “Galvin Report” as it
was prepared by Internal Auditor of the European
parliament Robert Galvin), is an annual audit into
the Parliamentary Assistance Allowance which
examines the operation of the Allowance, and
contains proposals for its reform and details of
abuses in allowances paid to certain MEPs, in order
to identify drawbacks in the allowance system. The
requested report doesn’t identify the names of MERs.
In March 2008, the Bureau of the European Parliament
carried out a series of reforms for the
implementation of recommendations contained in the
Report. A month later the European Parliament voted
to keep the report confidential.

On 23 June 2008, the
Secretary-General of the Parliament granted the
applicant access to the 2006 Annual Report of the
Parliament’s Internal Audit Service with the
exception of one paragraph which dealt with an audit
still pending without mentioning the other 16
reports requested by the applicant. The applicant
submitted second request reiterating his request for
access to the 16 internal audit reports and claiming
that there was provided no objective justification
as to why access to those reports had been denied.
The applicant also requested disclosure of the
redacted paragraph in Report No 07/01.

By letter of 11
August 2008 (‘the contested decision’), the
Parliament denied to provide access to the redacted
paragraph in Report No 07/01, granted full access to
13 of the 16 internal audit reports and partial
access to two further internal audit reports and
refused access to the fourteenth of those reports,
namely Internal Audit Report No 06/02 of 9 January
2008 entitled ‘Audit of the Parliamentary Assistance
Allowance’ (‘Report No 06/02’) (para. 6). In its
letter to the applicant Parliament stated that: “The
use which its Members made of the allowances
available to them was a sensitive matter followed
with great interest by the media and that elements
of Report No 06/02 could be used to derail the
debate on the reform of the system and compromise
rapid reform. Consequently, according to the
Parliament, disclosure of Report No 06/02 could, at
that stage, seriously undermine not only its
decision-making process but also beyond, as the
reform could not be carried out by that institution
alone.” (para. 11). It also stated that exception
set forth in the third indent of Article 4(2) of
Regulation No 1049/2001 applied to the requested
Report No 06/02, because its disclosure would have
violated both the purpose of the audit and the
Parliament’s decision-making process within the
meaning of Article 4(3) (para. 12).

As a result of the
refusal Mr. Toland initiated proceedings against the
Parliament in the General Court of the European
Union and the Governments of Sweden, Finland and
Denmark intervened in his favor.

Decision

In respect of the
argument relied on by the Parliament that the
disclosure of the report would undermine
decision-making process the Court ruled that the
contested decision doesn’t contain any reliable
argument that such a risk was reasonably foreseeable
and not purely hypothetical on the date when the
decision was adopted. As the Court stated “the fact
that the use by the Members of Parliament of the
financial resources made available to them is a
sensitive matter followed with great interest by the
media, which the applicant does not deny – quite the
contrary – cannot constitute in itself an objective
reason sufficient to justify the concern that the
decision-making process would be seriously
undermined, without calling into question the very
principle of transparency intended by the EC Treaty”
(para. 80). According to the Court neither the
complexity of the process presents a reasonable
ground to assume that the disclosure of the Report
06/02 would undermine it.

Regarding the
argument of the Parliament that several attempts to
reform parliamentary assistance system have failed
in the past the Court stated that this argument was
not given in the decision and was raised only later,
before the Court, and also without any explanation
that those failures had been caused by the
disclosure of any sensitive information (para. 82).

The Court also noted
that in the decision the Parliament didn’t discuss
if there existed overriding public interest
justifying the disclosure of the requested report.
Regarding the assertion of the Parliament that the
request of the applicant didn’t contain any
arguments justifying the disclosure of the repot the
Court held that in accordance with Article 6(1) of
the Regulation No 1049/2001 the applicant is not
obliged to indicate the reasons for requesting
access to information (para. 84).

Due to the above the
Court ruled that the contested decision must be
annulled as it refuses access to the Report No 06/02
without justification.

Case title:
Sweden and Turco v. Council of the European Union,
Denmark, Finland, United Kingdom, and Commission of
the European Communities

Case Number:
C?39/05 P and C?52/05 P

Date of
decision: 1 July 2008

Relevant Law:
Regulation (EC) No 1049/2001 of the European
Parliament and of the Council of 30 May 2001
regarding public access to European Parliament,
Council and Commission documents

Decision:
The Court annulled the decision of the Council that
refused access to the document containing the
opinion of the Council's legal service on a proposal
for a directive laying down minimum standards for
the reception of applicants for asylum in Member
States.

In October 2002 Mr.
Turco, a resident of Italy, submitted a request to
the Council for access to documents appearing on the
agenda of the Justice and Home Affairs Council
meeting, including an opinion of the Council’s legal
service on a proposal for a directive laying down
minimum standards for the reception of applicants
for asylum in Member States. The Council refused to
disclose the document.

Decision

The Grand Chamber
held that a legal opinion given to the Council
(which has legislative responsibilities) concerning
proposed legislation had to be disclosed because (a)
the Council had provided no concrete reasons as to
why disclosure would undermine the protection of
legal advice, and (b) there was an overriding public
interest in disclosure. It rejected the Council’s
abstract submissions that disclosure could (a) lead
the public to doubt the lawfulness of a legislative
act, or (b) undermine the Council’s interest in
seeking frank advice. Regarding the first point,
concerning impact on the public’s perception of the
lawfulness of a legislative act, the Court reasoned
that openness grants legitimacy to the institutions
and increases the confidence of EU citizens towards
these institutions while the lack of debate and
information may produce doubts in respect of the
legitimacy of the whole decision-making process.

The Court stated that
it was incumbent on the Council to ascertain whether
there was any overriding public interest justifying
disclosure. Even if the Council had a legitimate
concern that disclosure could harm important
interests, it nonetheless had to weigh that risk
against the overriding public interests which
underlie Regulation No 1049/2001. The Court
concluded that there is an overriding public
interest because disclosure of documents containing
the advice of an institution’s legal service on
legal issues increases the transparency of the
legislative process and strengthens the democratic
right of European citizens to scrutinize the
information which has formed the basis of a
legislative act. Accordingly, the Court set aside
the judgment of the Court of First Instance and,
pursuant to Article 61 of the Statute of the Court
(which provides that the Court itself my give final
judgment in a matter where the state of proceedings
so permit) annulled the Council’s decision refusing
to allow Mr. Turco access to the legal opinion in
question.

Inter-American
Court of Human Rights

Case title:
Claude Reyes et al. v Chile

Case
Number:

Date of
decision: 19 September 2006

Relevant law:
American Convention on Human Rights

Decision:
The Court ruled that the State shall, through
corresponding entity and within six months, provide
requested information and within reasonable time
shall adopt necessary measures to ensure the right
of access to State-held information pursuant to the
general obligation to adopt domestic law established
in Article 2 of the American Convention on Human
rights.

Key words: access
to information as a fundamental right

Summary:

Facts

Fundacion Terram is
an environmental NGO that filed a request for
information with the government of Chile about a
major logging contract. Requests were ignored and
subsequent appeals by the victims were dismissed by
the Supreme Court as “manifestly ill-founded”.

Decision

The Inter-American
Court became the first international tribunal to
recognize a basic right of access to government
information as an element of the right to freedom of
expression. The court held that any restrictions on
the right of access should comply with the
requirements of Article 13.2 of the Convention, the
presumption being that all state-held information
should be public, subject to limited exceptions.
States are required to adopt a legal framework that
gives effect to the right of access, and to reform
secrecy laws and practices. The Court also ordered
Chile to train public officials on the rules and
standards that govern public access to information.

Note:
The Justice Initiative, joined by four other groups,
filed amicus curiae briefs in the case with
both the Commission and the Court. Excerpts relating
to Chile from Transparency
and Silence, a Justice Initiative survey
on governmental handling of information requests,
were formally introduced as evidence by the
applicants.

Decision:
The court ruled that by denying and delaying access
by the victims’ relatives to relevant army archives
and other information, Brazil had violated their
Article 13 right to information established by
American Convention, read together with Articles 8
(duty to investigate) and 25 (access to court) of
the Convention.

Key words: torture,
impunity, right to truth

Summary:

Facts

In 1972, a small
guerilla movement of students and workers emerged
from the region of the Araguaia River in Brazil,
seeking to foment a popular uprising to overthrow
the military dictatorship which had been in power
since 1964. For the next two years, the Brazilian
Army brutally suppressed the movement, arresting and
torturing the guerrillas. More than 60 were
disappeared, their fate still unknown. For nearly 30
years the families of the victims have tried to
expose the truth about what happened to their
relatives, but have been prevented from doing so by
amnesty laws passed in 1979 by the military
government precluding any criminal investigations
into offences carried out by the military regime.
Since 1982, family members and certain public
authorities have brought various legal claims in an
attempt to determine the circumstances of the
disappearances, to locate burial sites, and to
recover the remains of the victims. Though the
Supreme Court ruled in favor of the applicants the
government maintained throughout the process that
public records, including army and national archives
records are not available. In recent years, however,
journalists and former army officials have published
information about the case, including documentary
and photographic material suggesting that documents
and other evidence are available and that government
searches have been inadequately performed.

The Justice
Initiative together with the Commonwealth Human
Rights Initiative, the Open Democracy Advice Centre
(South Africa) and the South African History Archive
filed an amicus curiae brief
in which the following three main arguments are
made: (1) the American Convention grants victims and
the general public a right to the truth about gross
or massive human rights violations, including forced
disappearances (Article 13, in conjunction with
Articles 1, 8 and 25); (2) the right to the truth
has both an individual and a collective dimension,
separate from the right to judicial accountability
for gross human rights abuses; it imposes on the
state a duty to establish the basic facts of the
violations, the general circumstances in which they
occurred, as well as their reasons and perpetrators;
and (3) Brazil failed to comply with the right to
the truth by failing to disclose or de-classify
relevant records held by the armed forces, and by
adopting amnesty laws that obstruct access to the
truth and shield the perpetrators.

Decision

The Inter-American
Court concluded that the provisions of the Amnesty
Law of Brazil that prevent the investigation and
punishment of serious human rights violations are
incompatible with the American Convention and lack
legal effect, and as such, cannot continue to
represent an obstacle for the investigation of the
facts of the case or for the identification and
punishment of those responsible.

The Inter-American
Court found that Brazil is responsible for the
violation of the right to seek information,
established in Article 13 of the American
Convention, given the State’s failure to provide
access to records, which were in its control, of
information on these facts. Additionally, the court
issued a number of important guidelines on the
question of access to information about past human
rights violations. These include the question of the
burden of proof regarding the (non-) existence of
relevant records; the state duty to respond to
requests for such information in good faith; and the
state’s inability to rely on the “state secrets”
doctrine as a basis for denying access to
information regarding serious human rights
violations.

Inter-American
Commission on Human Rights

Case Title:Indigenous Communities of the Xingu River
Basin, Pará, Brazil

Case Number:
PM 382/10

Date of
decision: 1 April 2011

Relevant Law:

Decision: The
Commission ordered the State of Brazil to stop the
construction ofBelo Monte
Hydroelectric Plant and to conduct informed
consultations with indigenous groups and for that
purpose to provide to them all the relevant
information and studies in accessible format and
understandable language for them.

10 indigenous groups
have asked the Brazilian authorities to halt the
construction of the Belo Monte Power Plant, in the
Amazon. The Belo Monte Dam is a proposed
hydroelectric dam complex on the Xingu River in the
state of Para in Brazil. After more than 17 years of
discussions, the construction of the plant was
approved by the Brazilian Congress in 2005. The
construction is argued to threaten the land and food
supplies of indigenous tribes. As it is claimed, the
Dam would destroy 516 square kilometers of an area
where indigenous groups are settled and also would
damage forest and decrease considerably the quantity
of fish stocks which is the main source of survival
for indigenous communities.

In February 2010, the
Brazilian Institute for the Environment and
Renewable Natural Resources (IBAMA) granted the
Preliminary License for the construction of the
power plant. The License set forth a list of 40
requirements which had to be fulfilled by the
company responsible for the construction.

Local communities,
indigenous groups and environmental organizations
have constantly opposed the construction of the
power plant because of its devastating influence on
the local communities and the nature. They used
available judicial remedies in order to prevent the
construction.

Decision

The case was brought
before Inter-American Commission. The affected
groups complained of the lack of public
participation in the licensing process; lack of
information related to the power plant and its
impact on the environment and the indigenous tribes.
The 20,000-page report concerning these issues was
made available only two days before the first public
hearing in September 2009 and it was written in a
technical language with no understandable
explanations for indigenous people. Affected groups
also complained that information was not available
in indigenous languages. The lack
of translation during public hearings made it
difficult for indigenous groups to express freely
their opinions, participate in the discussions and
receive full information. As it is established by
international standards and Brazilian legislation,
indigenous people must be consulted before the
approval of the power plant by the Congress and also
during the licensing process. Regardless of this
requirement there was not conducted any public
consultations regarding the construction of the dam.

The Inter-American
Commission granted precautionary measures to 10
indigenous groups against Brazil. The Commission
ordered that Brazil immediately suspend the
licensing process for the Belo Monte Hydroelectric
Plant project and terminate construction until
certain minimum requirements are complied with.
According to the Commission the State must (1)
conduct free, informed, and culturally appropriate
consultations with affected indigenous people with
the aim to reach an agreement; (2) guarantee that,
for the purpose of informed consultations, the
indigenous groups have access in advance to relevant
Social and Environmental Impact Study, in an
accessible format and understandable translation
into the indigenous languages; (3) adopt measures to
protect the life and physical integrity of the
indigenous peoples in Xingu Basin, and to prevent
the spread of diseases and epidemics among them.

UN
Human Rights Committee

Decision:
The Committee stated that restriction on Marque's
speech contradicted Article 19(2) of the Covenant

Key words: freedom
of expression, journalists

Summary:

Facts

Rafael Marques was
imprisoned for publishing a news article critical of
the Angolan president. After prolonged pretrial
detention, he was convicted of defamation, ordered
to pay a substantial fine, and prevented from
traveling.

Decision

The Committee found
that Angola had violated Articles 9, 12, and 19 of
the International Covenant on Civil and Political
Rights (ICCPR). The Committee stated that Marques'
arrest and detention were not reasonable or
necessary, and were therefore arbitrary
infringements of his liberty and security in
violation of Article 9(1); he was not promptly
informed of the reasons for his arrest or the
charges against him, in violation of Article 9(2);
his incommunicado detention denied him the right to
be brought before a judge, in violation of Article
9(3); he was denied counsel at an initial stage, and
denied his right to habeas corpus in violation of
Article 9(4).

According to the
Committee the restrictions on Marques' speech were
not provided for in law or necessary to achieve a
legitimate aim, violating his right to criticize or
publicly evaluate the government without fear of
punishment, in contravention of Article 19(2). It
also held that Marques' prevention from leaving
Angola, and the subsequent confiscation of his
passport, had no basis in law and violated his
freedom of movement under Article 12(1).

Note: The
Justice Initiative and Interights represented
Marques before the United Nations Human Rights
Committee arguing that his rights had been violated.

Relevant law:
Optional Protocol to the International
Covenant on Civil and Political Rights (ICCPR)

Decision:
The right to information is grounded within freedom
of expression; and Kyrgyzstan violated this right by
not disclosing information concerning death
sentences pursuant to secret bylaws which do not
qualify as legitimate restrictions to this right.

In March 2004, Nurbek
Toktankunov, representing a Kyrgyz public
association, requested the Ministry of Justice (MOJ)
corrections unit to provide data concerning death
sentences. The government entity denied the request
on the ground that this information is classified
under secret Kyrgyz bylaws. Paras. 2.1, 2.5. The MOJ
asserted that a state secrets law restricted such
information through secret lists and regulations.
Paras. 2.7-2.8. After the exhaustion of domestic
remedies, the requester filed a complaint at the
HRC. Kyrgyzstan did not respond on the merits, but
submitted data on death sentences and prison
mortality, stating that this was declassified “for
service purposes” but confidential for the media.
Paras. 4.1-4.2.

Decision

The HRC declared
admissible the Article 19 complaint as (1) the
information sought is in the public interest; (2)
criminal judgments are generally public; and (3) the
ICCPR recognizes the right of individuals and the
media to receive state-held information without
requiring a demonstration of direct interest. Para.
6.3.

The HRC recognized a
“right of access to State-held
information”—including a duty of the government to
disclose or to justify non-disclosure—grounded in
the ICCPR Article 19.3 freedom of expression. Para.
7.4. Kyrgyzstan violated Article 19.3 as (1) the
confidential regulations are not a “law” that can
restrict the right; and (2) the disclosure of
information concerning the death penalty is in the
public interest and restrictions on the right to
this information are not necessary to protect a
legitimate interest. Paras. 7.6-7.7. The State must
provide the requester with an effective remedy, yet
the information provided pursuant to the initiation
of the complaint constituted an effective remedy.
Para. 9.

A concurrence
expressed caution about subsuming RTI within the
right to expression to avoid diluting the right to
expression as RTI permits more limitations.

Decision: TheCourt ordered the disclosure of a 20
year-old donation agreement between the Schneider
Family Foundation, registered in U.S and Israel's
largest Health Services provider (which is
considered a public entities in Israel), concerning
a 60 million NIS (approximately $16 million)
contribution to the construction of a Children's
hospital.

Key words: access
to agreement concluded between the public authority
and donor organization

Summary:

Facts

Freedom of
Information Movement submitted the request for the
disclosure of agreement between the Clalit Health
Services (the general HMO or health fund) and the
Schneider Family after an article appeared in the
newspaper that Lynn Schneider, a chairman of the
Schneider Family Foundation, was involved in the
firing of the hospital staff and that according to
the donation agreement the Foundation had the right
to interfere in the management affairs of the
hospital. The request was refused. The applicant
appealed.

Decision

As the Court noted
without publishing the requested information the
public will be denied the right to control the
communications of public bodies with donor
organizations and thus will not have the possibility
to comment on the issue. According to the Court only
the right to access to information enables the
public to reject or confirm the activities of public
bodies.

The Court rejected
the argument of the respondent that the Freedom of
Information Act didn’t apply to the agreement as it
was signed before the enactment of the act stating
that such interpretation would deprive the law of
its content.

The Court also stated
that the engagement of a private entity with public
authority, should assume implied consent of the
private entity that details of the agreement, which
are not personal, would be subject to the public
criticism. Notwithstanding this, the Court noted
that as far as there was a concern that the
disclosure of the agreement would have a negative
effect on future contributions this concern could be
removed by disclosing agreement, except for details
about the amounts and dates of payments, which must
be considered as private information.

Decision:
The Court ruled that the public has a right to be
informed of the content of coalition agreements
negotiated by political parties participating in an
election.

Key words: political
parties, public life

Summary: The
Court heldthat the public has a
right to be informed of the content of coalition
agreements negotiated by political parties
participating in an election. Acting in the absence
of explicit constitutional or statutory recognition
of the right of access, the Court nonetheless held
that the democratic system is based on the sharing
of the information about what is happening in the
public domain with the public itself. The Government
can withhold this information only in exceptional
circumstances when this is required by state
security or foreign relations or where there is a
risk threatening any vital public interest.

Decision: TheCourt ruled that the Defense Ministry must
immediately provide Gisha with the "red line
document" and disclose the names of those officials
responsible for the closure.

Key words: access
to documents determining what products can be
allowed into Gaza strip,internal
deliberation,public interest

Summary:

Facts

Gisha, an NGO
fighting for more freedom of movement in the
occupied territories and against the closure policy,
asked the Ministry of Defense to provide documents
that the Ministry used to determine what products
should be allowed into the Gaza strip and at what
quantities. The ministry refused the FOI request.

Gisha brought a case
before the Court. Following the Flotilla incident
which took place during the Court hearing the
Ministry agreed to disclose some of the documents
stating that their disclosure no longer threaten
national security or foreign affairs. But it refused
to make public “red line document” which supposedly
contained calculations of the most minimal
consumption of food in Gaza that the closure policy
will not cross.

The Ministry claimed
that the requested documents presented sensitive
security issues and that on such issues the relevant
authorities should have right to deliberate freely.
It also argued that as far as the documents are not
part of any policy there is no public interest in
their disclosure.

Decision

The Court rejected
the arguments put forward by the Defense Ministry.
Justice Ruth Ronen noted that the fact that the
document was part of internal deliberations in
itself is not sufficient to justify refusal of
disclosure. According to her the state would have to
show that in these specific circumstances there is a
fear of a "chilling effect". Since the document
doesn’t contain the views of particular individuals,
she found that its disclosure wouldn’t threaten the
deliberation process. She held that the State failed
to explain why the document was sensitive. The fact
that the document deals with a sensitive issue,
wrote Justice Ronen, does not entail that the
document itself is sensitive. As she stated there
was public interest in disclosure even if the
document was not the basis for the implemented
policy.

The Court ruled that
the Defense Ministry must reveal the "red lines
document" in which the state apparently established
the minimum caloric intake required for the survival
of residents of the Gaza Strip and also to reveal
the names and positions of the officials enforcing
the closure of Gaza, which were blacked out in the
documents previously provided to Gisha.

Peter Kariuki, a
former Commander of the Kenya Air Force, was
relieved of his duties, arrested, detained, and
eventually tried and convicted after a 1982
attempted coup. He brought a suit to challenge the
conditions of his detention as in violation of his
fundamental rights. In connection with this legal
challenge, Mr. Kariuki sought from the Department of
Defense employment records, payment vouchers, and
current salary records for officers of similar rank.
The Court ordered the Department of Defense to
produce the information, but the Department of
Defense refused, asserting that salaries and
allowances of Armed Forces personnel are
confidential and personal. P. 11.

Decision

The Court ruled that
the Defense Forces are subject to the Constitution,
pursuant to Articles 3 and 10. Article 10 stipulates
transparency and accountability as among the
national values binding all state organs. The Court
further ruled that Article 35, on the right to
information, grants Mr. Kariuki the right of access
to the information requested from the Department of
Defense. The Court thus rejected the Attorney
General’s assertion that defense salary and
allowance information is confidential, and compelled
the Department of Defense to provide this
information to the Commander and to the court. The
Court stated that “records regarding salaries and
benefits payable to public officers cannot be
classified as private or confidential.” The Court
recognized as relevant that the underlying case
related to serious alleged violations of
constitutional rights. Pp. 14-15.

Decision:
The court ruled that the information about
investigation is the property of the public as it
pays to the state to conduct investigation. The
press had a duty to find out truth about the murder
and provide correct information to the public.

Key words: criminal
investigation

Summary:

Facts

The case concerned a
police investigation into a murder in September 2003
that was of great public interest. In the midst of
heated constitutional debate, Dr. Odhiambo Mbai, the
Chairman of the Devolution Committee of the National
Constitutional Conference at Bomas, who advocated
limiting the president’s broad powers, was killed in
his home. The police opened an investigation. The Standard
newspaper ran a story implicating some key
government people, including an MP, in the murder.
John Kiptorus, a police officer at the station that
was handling the investigation, was suspected of
having given a copy of the police video cassette
containing information about Dr. Mbai’s death to
David Makali, who was at the time the Standard’s
editor and a journalist. Both of them were arrested
and charged in criminal court for stealing the video
cassette, the property of the Kenyan Government.

Decision

The Chief Magistrate,
Aggrey Muchelule (who has since become a Judge)
found that there was no theft of the transcript in
question and acquitted both accused. In his ruling,
the Chief Magistrate stated that death was the issue
of public interest and caused anxiety in the public
and the police are obliged to investigate the case
and provide information to the public. Information
about investigation is the property of the public as
it pays to the state to conduct investigation. The
press had a duty to find out truth about the murder
and provide correct information to the public. It
had a complementary role to that of the police. To
prevent the press to carry out this function would
be restriction of the constitutional freedom of the
press and the right of Kenyans to have information
about their country’s affairs.

Noteworthy is the
court’s finding that the public has the right to
know about affairs of their country.

South
Africa

Decision:
The Court ruled that access to the passenger records
of a certain commercial flight was required for the
protection of the contractual (retirement) rights of
a former pilot.

Key words: passenger
records

Summary:

Facts

The retired pilot was
entitled to a certain number of business class
flights per year as a part of his contractual
retirement package. Arriving in New York to fly to
South Africa, he was informed that there were no
such seats available. He disbelieved this assertion
and, by successfully accessing the computer records
relating to the flights and its passenger
assignments, was able to show that at the point he
sought the seat, he was unlawfully denied one in
breach of his contractual rights.

Decision

The Supreme Court of
Appeal found that access to the passenger records of
a certain commercial flight was required for the
protection of the contractual (retirement) rights of
a former pilot of South African Airways (SAA).

Decision:
The Court ruled that a person who seeks to challenge
the refusal of access to information must be
afforded an adequate and fair opportunity to do so
and ordered the legislature to enact legislation
that prescribes a reasonable time limit to approach
a court for relief.

Key words: access
to court, access to information, time limit

Summary:

Facts

Mr. Brümmer, a
journalist of the Mail& Guardian
newspaper, made a request to the Department of
Social Development for information about a tender
the department is alleged to have awarded to IT lynx
Consortium.

When Mr. Brümmer’s
request was denied and an internal appeal was
unsuccessful, he turned to the Cape High Court for
relief. However, his application to the High Court
was made after the 30-day limit, set out by the
Promotion of Access to Information Act, Article
78(2). The applicant submitted that the time limit
violates his rights of access to court as well as
access to information guaranteed by the
Constitution.

Decision

The High Court
accepted the claim of unconstitutionality of the
30-day limit and held that section 78(2) was
unconstitutional in that it does not give a person
who is refused information adequate time to approach
a court for relief. It therefore referred the matter
to the Constitutional Court for confirmation.

Amicus briefs were
presented by the South African History Archives
Trust (SAHA) as well as the South African Human
Rights Commission.

Judge Sandile Ngcobo,
in a unanimous judgment, upheld the conclusion by
the High Court. He held that a person who seeks to
challenge the refusal of access to information must
be afforded an adequate and fair opportunity to do
so. He further declared that access to information
is crucial to the right to freedom of expression,
which includes freedom of the press and other media,
and also freedom to receive or impart information or
ideas.

Judge Ngcobo said the
public must have access to information held by the
state. The Constitutional Court ordered the
Parliament to enact legislation that prescribes a
time limit that is consistent with the Constitution,
bearing in mind the right of access to court as well
as the right of access to information. He ordered
that pending the enactment of this legislation, a
person who wishes to challenge the refusal of access
to information must lodge an application to court
within 180 days of being notified of a decision of
an internal appeal refusing access to information.

Decision:
The Court ruled that the “public bodies” within the
meaning of the PAIA included state-owned company
that was privatized but at the material time was
under the state control and was performing a public
function

The respondent
company had at one time been a state-owned company
(then named Iscor) that was then privatized. The
requester – a “determined student,” sought the
records as a part of his academic study of state
corporations in the ‘old’ South Africa.

Decision

In a well-reasoned
judgment, Judge Conradie observed that nowadays when
the privatization of public services and utilities
is a common practice, private bodies may perform
what is traditionally considered as a public
function without being subject to control from the
government’s side and despite this may still be
classified as public bodies.

In finding that Iscor
not only was under the control of the state at the
time but was performing a public function in
providing South African industry with a supply of
government-regulated steel, the SCA made clear that
the term “public bodies” within the meaning of the
PAIA included previously public bodies that had been
privatized.

Decision: Under
the South African Bill of Rights and the Promotion
of Access to Information Act of 2000, conclusory
affidavits provided by the President to justify the
secrecy of a judicial report prepared for the
President are insufficient evidence to justify
non-disclosure.

Key words: evidentiary
basis for secrecy; reports prepared for and held by
President; discretionary right to non-disclosure;
Promotion of Access to Information Act (PAIA);
constitutional right to information

Summary:

Facts

M&G Media
Limited, the publisher of a weekly newspaper,
requested the disclosure of a report on the 2002
Zimbabwe elections prepared by two judges at the
request of then President incumbent Mbeki. The
President refused to release the report. In its
information request, M&G relies on the
constitutional right to “any information . . . held
by the state” as promulgated and limited by the
Promotion of Access to Information Act of 2000
(PAIA). The President asserts three grounds within
PAIA to defend the report’s secrecy: (1) the
exclusion of Cabinet and committee records from PAIA
disclosure obligations; (2) Section 41(1)(b)
permitting discretionary non-disclosure of
information “supplied in confidence by or on behalf
of another state or an international organization”;
and (3) Section 44 permitting discretionary
non-disclosure of records containing “an opinion,
advice, report or recommendation obtained or
prepared . . . for the purpose of” legally required
policy formulation or decision-taking. On the first
judicial ruling, the North Gauteng High Court
ordered the release of the report. The President
appealed (paras. 3-8, 21).

Decision

The appellate court
upheld the lower court’s order requiring the
report’s release and soundly rejected the
evidentiary support presented by the President to
justify non-disclosure. The court planted South
Africa’s freedom of information law within the
“legal culture of accountability and transparency,”
and South Africa’s Bill of Rights and freedom of
information law as representative of a “‘culture of
justification’” (paras.10-11). The public body must
provide adequate justification for non-disclosure
and not conclusory, perfunctory and dismissive
statements, as provided here (paras. 13, 19, 31).

Recognizing the
inequality of information between the public body
and the information requestor, the court “must
scrutinize the affidavits put up by the public body
with particular care” and “not hesitate to allow
cross-examination of witnesses . . . if their
veracity is called into doubt” (para. 15). The court
contests the President’s failure to present “direct
knowledge”—here held by Mr. Mbeki and the judges who
do not provide affidavits (para. 20). Further,
“proper grounds” must be laid to justify the
indirect knowledge of the witness, to judge the
validity and the weight of the assertions presented
(paras. 37-38). The appellate court finds that the
affidavits supplied by the government “assert
conclusions . . . with no evidential basis to
support them, in the apparent expectation that their
conclusions put an end to the matter. The Act
requires a court to be satisfied that secrecy is
justified and that calls for a proper evidential
basis to justify the secrecy” (para. 19).

The court rejects the
evidentiary basis presented in support of each of
the President’s specific justifications, outlined
above. First, no evidence is presented that the
President is the Cabinet or that the report was
before the Cabinet (para. 21). Second, no or
insufficient evidence was presented that the public
body exercised the discretion required under Section
41(1)(b); that a state or an international
organization supplied the information requested;
that any such information was supplied in
confidence; or that certain information not supplied
by a state or international organization could not
be severed and released (paras. 22-26, 40-49).
Lastly, no or insufficient evidence was presented
that the public body exercised the discretion
required under Section 44; and that the purpose
of the report’s preparation satisfied Section 44
requirements (paras. 27-34). In a reference to the
judicial discretion to review records that a public
body asserts should not be disclosed, the court in
closing warns that the public trust in a court,
gleaned from the court’s openness and judicial
reasoning, is jeopardized by “becom[ing] a party to
secrecy” (para. 52).

Decision:
The Court ordered the Registrar for Genetically
Modified Corps to disclose information concerning
the use of genetically modified organisms (GMOs) in
South Africa, including certain risk assessment data
as the disclosure was in public interest because of
the potential dangers that GMO experiments may have
caused to public health and environmental safety.

Key words: commercial
interest, public health, public interest

Summary:

Facts

The Registrar for
Genetically Modified Corps initially refused to
disclose the information pertaining to the use of
genetically modified organisms (GMOs) in South
Africa, including certain risk assessment data, to
Biowatch on the ground that the disclosure of such
information would harm the commercial and financial
interests of Monsanto and several other companies.

Decision

The Court ordered the
Registrar of Genetically Modified Crops to release
requested information to the requester. The court
placed the burden of establishing that a refusal of
a request for access is justified on the parties
claiming the refusal. Section 36 of the Promotion of
Access to Information Act provides that access to a
record may not be refused if it consists of
information “about the results of [any]
investigation” performed by or on behalf of a third
party “and its disclosure would reveal a serious
public safety or environmental risk.” The Court
noted the potential dangers to public health and
environmental safety that result from GMO
experimentation and concluded that disclosure of
most of the requested information was in the public
interest.

Decision:
The Court held that the applicants were entitled to
get copies of records relevant to the planning
permission of steel mill.

Key words: construction,
environment

Summary: High
Court ruled that applicant requesters, who sought to
protect their rights to trust property which were
potentially threatened by the building of a large
steel mill, were entitled to copies of the records
held by the Minister of Environmental Affairs
relevant to the proposed rezoning and planning
permission.

Decision: The
magistrate court observed that the applicants had a
right to access the oil agreements, but that, on
balance, the harm (to confidentiality interests)
from disclosure outweighed any public benefits from
disclosure (given that the applicants failed to
establish or even allege any concrete public
benefits), and accordingly dismissed the
application.

Since 2006, over two
billion barrels of oil reserves have been discovered
in various parts of the Uganda’s northern region of
Albertine Graben, bordering on the Democratic
Republic of Congo (DRC). On the basis of these
discoveries, the government and oil companies have
entered into several Production Sharing Agreements
(PSAs).

Applicants, with the
support of Ms. Katuntu & Co. Advocates, applied
to Attorney General and the Permanent Secretary of
the Ministry of Energy and Mineral Resources
requesting certified copies of agreements made
between the government of Uganda and certain
multinational oil companies for the purpose of oil
prospecting and exploitation around the Lake Albert
Region (Production Sharing Agreements, or PSAs). The
request was refused on the grounds that a clause in
the PSAs provided for confidentiality about the
agreements and resulting information, and mandated
the consent of the multinational companies for
disclosure.

Applicants, two
journalists, supported by Human Rights Information
Network (Hurinet) and OSIEA, applied to a Ugandan
magistrate court for an order to force the
government to disclose the oil agreements.
Application seeking from the court: (i) to set aside
the administrative decisions actively or
constructively denying access to the PSAs; (ii) a
declaration that the public interest in disclosure
is greater than any third party harm; and (iii)
unrestricted access to the record of the PSAs in the
public interest. The government argued that the
disclosure would amount to a breach of contract
because of PSA confidentiality clauses requiring
third party consent of the prospecting companies,
and that AIA § 28(1)(a) requires the rejection of an
information request if the disclosure would breach a
duty of confidence owed a third party.

Decision

In the initial
hearing, the magistrate court observed that the
applicants had a right to access the oil agreements,
but that, on balance, the harm (to confidentiality
interests) from disclosure outweighed any public
benefits from disclosure (given that the applicants
failed to establish or even allege any concrete
public benefits), and accordingly dismissed the
application ruling that the government did not have
to disclose the documents. The Court concluded that:

The government has to show more than that
disclosure would breach its contract with private
oil companies given that a court order of
disclosure “supersedes any agreement between the
parties.”

Standard for 34(b) mandatory disclosure in the
public interest requires that applicants
demonstrate “that the public benefit in the
disclosure of the details of the agreements far
outweighs the harm” that would result from
violation of the “privacy and confidentiality
interest of the contracting parties.”

Applicants did not sufficiently establish that
this application is brought in the public
interest: failed to demonstrate that disclosure
would translate into public engagement in oil
exploitation or a more accountable government.

Trustee-beneficiary relationship between the
government and the people vis-à-vis natural
resources is a unique one that does not require
disclosure, particularly where disclosure can be
detrimental to the Ugandan people.

Decision: The
Court ruled that as theImplementation
Agreement (IA) covering the building, operation and
transfer of a hydroelectric dam was a public
document, Power Purchase Agreement which was
incorporated into IA was also a public document.
Notwithstanding this the Court ruled that the
applicant NGO didn’t have right to access these
documents only because not all of its members were
citizens of Uganda.

The Government of
Uganda entered into a series of agreements, the main
agreement being an Implementation Agreement (IA),
with the AES Nile Power Limited covering the
building, operation and transfer of a hydro-electric
dam on the River Nile near Jinja, Uganda. As a
consequence of the IA, a Power Purchase Agreement
(PPA) was executed by AES Nile Power Limited and
Uganda Electricity Board (UEB), a statutory
corporation at the time, established and wholly
owned by the Government of Uganda, with the
commercial monopoly to generate, transmit and sell
electric current in Uganda. Subsequently Uganda
Electricity Transmission Company Ltd. (UET) became
the successor to the UEB, and so the applicant filed
the case also against UET.

The Applicant
Greenwatch is a Ugandan NGO dedicated to
environmental protection. It sought to obtain a copy
of the PPA from the Government in vain. The
Government responded in November 2001 that the PPA
contained commercial secrets, and that disclosure
would not only impair the economic credibility and
sovereignty of Uganda, but would also amount to a
breach by the State of its sovereign commitments
under the said agreements. Greenwatch submitted that
it was entitled under Article 41 of the Constitution
to have access to information that is in the hands
of the state, its organs and agencies, and t